UNITED STATES v. INADI
No. 84-1580
Supreme Court of the United States
Argued December 3, 1985—Decided March 10, 1986
475 U.S. 387
Deputy Solicitor General Frey argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant Attorney General Trott, Samuel A. Alito, Jr., and Patty Merkamp Stemler.
Holly Maguigan argued the cause for respondent. With her on the brief were Julie Shapiro and William F. Sheehan.
This case presents the question whether the Confrontation Clause requires the Government to show that a nontestifying co-conspirator is unavailable to testify, as a condition for admission of that co-conspirator‘s out-of-court statements.
I
Following a jury trial in the Eastern District of Pennsylvania, respondent Joseph Inadi was convicted of conspiring to
In the course of manufacturing and selling methamphetamine, McKeon, Levan, and respondent met with another unindicted co-conspirator, John Lazaro, at an empty house in Cape May, New Jersey. There they extracted additional methamphetamine from the liquid residue of previous batches. In the early morning hours of May 23, 1980, two Cape May police officers, pursuant to a warrant, secretly entered the house and removed a tray covered with drying methamphetamine. With the permission of the issuing Magistrate, the officers delayed returning an inventory, leaving the participants to speculate over what had happened to the missing tray.
On May 25, 1980, two Drug Enforcement Administration agents in Philadelphia monitored a meeting between respondent and Lazaro alongside Lazaro‘s car. At one point one of the agents saw respondent lean into the car. After Lazaro drove off, the agents stopped his car. They searched the car, Lazaro, and a passenger, Marianne Lazaro, but they found nothing and let the Lazaros leave. Marianne Lazaro later recounted that during the search she threw away a clear plastic bag containing white powder that her husband had handed to her after the meeting with respondent. Eight hours after the search, one of the agents returned to the scene of the crime and found a clear plastic bag containing a small quantity of methamphetamine.
Respondent also objected to admission of the statements on Confrontation Clause grounds, contending that the statements were inadmissible absent a showing that the declarants were unavailable. The court suggested that the prosecutor bring Lazaro to court in order to demonstrate unavailability. The court also asked defense counsel whether she wanted the prosecution to call Lazaro as a witness, and defense counsel stated that she would discuss the matter with her client. The co-conspirators’ statements were admitted, conditioned on the prosecution‘s commitment to produce Lazaro. The Government subpoenaed Lazaro, but he failed to appear, claiming car trouble. The record does not indicate that the defense made any effort on its own part to secure Lazaro‘s presence in court.
Respondent renewed his Confrontation Clause objections, arguing that the Government had not met its burden of show
The Court of Appeals for the Third Circuit reversed. 748 F. 2d 812 (1984). The court agreed that the Government had satisfied
We granted certiorari, 471 U. S. 1124 (1985), to resolve the question whether the Confrontation Clause requires a showing of unavailability as a condition to admission of the out-of-court statements of a nontestifying co-conspirator, when those statements otherwise satisfy the requirements of
A
The Court of Appeals derived its rule that the Government must demonstrate unavailability from our decision in Roberts. It quoted Roberts as holding that “in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case... the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” 448 U. S., at 65. The Court of Appeals viewed this language as setting forth a “clear constitutional rule” applicable before any hearsay can be admitted. 748 F. 2d, at 818. Under this interpretation of Roberts, no out-of-court statement would be admissible without a showing of unavailability.
Roberts, however, does not stand for such a wholesale revision of the law of evidence, nor does it support such a broad interpretation of the Confrontation Clause. Roberts itself disclaimed any intention of proposing a general answer to the many difficult questions arising out of the relationship between the Confrontation Clause and hearsay. “The Court has not sought to ‘map out a theory of the Confrontation Clause that would determine the validity of all... hearsay “exceptions.“‘” 448 U. S., at 64–65, quoting California v. Green, 399 U. S. 149, 162 (1970). The Court in Roberts remained “[c]onvinced that ‘no rule will perfectly resolve all possible problems‘” and rejected the “invitation to overrule a near-century of jurisprudence” in order to create such a rule. 448 U. S., at 68, n. 9, quoting Natali, Green, Dutton, and Chambers: Three Cases in Search of a Theory, 7 Rutgers-Camden L. J. 43, 73 (1975). In addition, the Court specifically noted that a “demonstration of unavailability is not always required.” 448 U. S., at 65, n. 7. In light of these limiting statements, Roberts should not be read as an abstract answer to questions not presented in that case, but
The Confrontation Clause analysis in Roberts focuses on those factors that come into play when the prosecution seeks to admit testimony from a prior judicial proceeding in place of live testimony at trial. See
Roberts must be read consistently with the question it answered, the authority it cited, and its own facts. All of these indicate that Roberts simply reaffirmed a longstanding rule, foreshadowed in Pointer v. Texas, 380 U. S. 400 (1965), established in Barber, and refined in a line of cases up through Roberts, that applies unavailability analysis to prior testimony.6 Roberts cannot fairly be read to stand for the radical proposition that no out-of-court statement can be introduced by the government without a showing that the declarant is unavailable.
B
There are good reasons why the unavailability rule, developed in cases involving former testimony, is not applicable to co-conspirators’ out-of-court statements. Unlike some other exceptions to the hearsay rules, or the exemption from the hearsay definition involved in this case, former testimony often is only a weaker substitute for live testimony. It seldom has independent evidentiary significance of its own, but is intended to replace live testimony. If the declarant is available and the same information can be presented to the trier of fact in the form of live testimony, with full cross-examination and the opportunity to view the demeanor of the declarant, there is little justification for relying on the weaker version. When two versions of the same evidence are available, longstanding principles of the law of hearsay, applicable as well to Confrontation Clause analysis, favor the better evidence. See Graham, The Right of Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One, 8 Crim. L. Bull. 99, 143 (1972). But if the declarant is unavailable, no “better” version of the evidence exists, and
Those same principles do not apply to co-conspirator statements. Because they are made while the conspiracy is in progress, such statements provide evidence of the conspiracy‘s context that cannot be replicated, even if the declarant testifies to the same matters in court. When the Government—as here—offers the statement of one drug dealer to another in furtherance of an illegal conspiracy, the statement often will derive its significance from the circumstances in which it was made. Conspirators are likely to speak differently when talking to each other in furtherance of their illegal aims than when testifying on the witness stand. Even when the declarant takes the stand, his in-court testimony seldom will reproduce a significant portion of the evidentiary value of his statements during the course of the conspiracy.
In addition, the relative positions of the parties will have changed substantially between the time of the statements and the trial. The declarant and the defendant will have changed from partners in an illegal conspiracy to suspects or defendants in a criminal trial, each with information potentially damaging to the other. The declarant himself may be facing indictment or trial, in which case he has little incentive to aid the prosecution, and yet will be equally wary of coming to the aid of his former partners in crime. In that situation, it is extremely unlikely that in-court testimony will recapture the evidentiary significance of statements made when the conspiracy was operating in full force.
These points distinguish co-conspirators’ statements from the statements involved in Roberts and our other prior testimony cases. Those cases rested in part on the strong similarities between the prior judicial proceedings and the trial. No such strong similarities exist between co-conspirator statements and live testimony at trial. To the contrary, co-conspirator statements derive much of their value from the
C
There appears to be little, if any, benefit to be accomplished by the Court of Appeals’ unavailability rule. First, if the declarant either is unavailable, or is available and produced by the prosecution, the statements can be introduced anyway. Thus, the unavailability rule cannot be defended as a constitutional “better evidence” rule, because it does not actually serve to exclude anything, unless the prosecution makes the mistake of not producing an otherwise available witness. Cf. Westen, supra; Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv. L. Rev. 1378, 1403 (1972). In this case, for example, out-of-court statements by Michael McKeon and Marianne Lazaro, who testified under immunity, could be introduced based on their testimony in court. The statements of William Levan were admissible because he properly asserted his Fifth Amendment privilege and thereby was unavailable.
Second, an unavailability rule is not likely to produce much testimony that adds anything to the “truth-determining process” over and above what would be produced without such a rule. Dutton, supra, at 89. Some of the available declarants already will have been subpoenaed by the prosecution or
While the benefits seem slight, the burden imposed by the Court of Appeals’ unavailability rule is significant. A constitutional rule requiring a determination of availability every time the prosecution seeks to introduce a co-conspirator‘s declaration automatically adds another avenue of appellate review in these complex cases. The co-conspirator rule apparently is the most frequently used exception to the hearsay rule. See 4 D. Louisell & C. Mueller,
Moreover, an unavailability rule places a significant practical burden on the prosecution. In every case involving co-conspirator statements, the prosecution would be required to identify with specificity each declarant, locate those declarants, and then endeavor to ensure their continuing availability for trial. Where declarants are incarcerated there is the burden on prison officials and marshals of transporting them to and from the courthouse, as well as the increased risk of escape. For unincarcerated declarants the unavailability rule would require that during the sometimes lengthy period before trial the Government must endeavor to be aware of the whereabouts of the declarant or run the risk of a court determination that its efforts to produce the declarant did not satisfy the test of “good faith.” See Ohio v. Roberts, 448 U. S., at 74–77; id., at 77–82 (BRENNAN, J., dissenting); see also United States v. Ordonez, 737 F. 2d 793, 802 (CA9 1984).13
An unavailability rule would impose all of these burdens even if neither the prosecution nor the defense wished to examine the declarant at trial. Any marginal protection to the defendant by forcing the government to call as witnesses those co-conspirator declarants who are available, willing to testify, hostile to the defense, and yet not already subpoenaed by the prosecution, when the defendant himself can call and cross-examine such declarants, cannot support an unavail
III
To some degree, respondent‘s arguments in this case require us to revisit this Court‘s resolution of this question in Dutton v. Evans, 400 U. S. 74 (1970). Although Dutton involved a state co-conspirator rule instead of
We accordingly reverse the judgment of the Court of Appeals for the Third Circuit.
It is so ordered.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.
With respect to the case before us, the majority takes but a small step. In Ohio v. Roberts, 448 U. S. 56 (1980), the Court held: “[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.‘” Id., at 66 (quoting Dutton v. Evans, 400 U. S. 74, 89 (1970) (plurality opinion)). The majority now assures us that “[t]he reliability of the out-of-court statements is not at issue in this case.” Ante, at 391, n. 3. Respondent is thus free to return to the Court of Appeals and argue that the
With respect to its constitutional analysis, however, the majority makes a giant leap. Even while conceding that the “very mission” of the Confrontation Clause is to “advance ‘the accuracy of the truth-determining process in criminal trials,‘” ante, at 396 (citations omitted), the Court today holds that the Clause is not offended when the prosecution fails to make even the slightest effort to produce for cross-examination the authors of the out-of-court statements with which it hopes to convict a defendant. Because I cannot share the majority‘s implicit faith that the camaraderie of a criminal conspiracy can substitute for in-court cross-examination to guarantee the reliability of conspiratorial statements, I can neither accept the majority‘s analysis nor stand silent while the values embodied in the Sixth Amendment are so cavalierly subordinated to prosecutorial efficiency.
I
A
In Ohio v. Roberts, supra, after canvassing the many previous cases that had examined the relationship between the
“The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. . . .
“The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that ‘there is no material departure from the reason of the general rule.‘” Id., at 65 (quoting Snyder v. Massachusetts, 291 U. S. 97, 107 (1934)).
This sweeping language was in no way limited to any particular variety of out-of-court declarations, and the Third Circuit panel that the Court reverses today was hardly alone in believing the rule in Roberts to be applicable to all such declarations. See, e. g., United States v. Massa, 740 F. 2d 629, 639 (CA8 1984); Haggins v. Warden, 715 F. 2d 1050, 1055 (CA6 1983), cert. denied, 464 U. S. 1071 (1984); see also United States v. Caputo, 758 F. 2d 944, 950, n. 2 (CA3 1985) (collecting cases). The majority, however, now tells us that Roberts “simply reaffirmed a longstanding rule... that applies unavailability analysis to prior testimony.” Ante, at 394. This effort to confine Roberts misconstrues both the meaning of that decision and the essential command of the Confrontation Clause.
Contrary to the majority‘s suggestion, it is clear that the Roberts Court consciously sought to lay down an analytical
The absence of any language in Roberts confining its analysis to prior testimony is not surprising. The Court simply recognized that whenever the prosecution seeks to convict a defendant by relying on the truth asserted in out-of-court declarations, confrontation and cross-examination of the declarant in open court are the most trusted guarantors of the reliability that is the primary concern of the Confrontation Clause. The need for these guarantors is as critical in cases involving the extrajudicial statements of co-conspirators as it is in cases involving the prior testimony of an absent declarant or the confession of an accomplice.
When the prosecution introduces the statements of a co-conspirator merely to show what the declarant might have been thinking or what he wished his listeners to believe at the time he spoke, neither the rule against hearsay nor the Confrontation Clause is implicated by their admission against a defendant. See Tennessee v. Street, 471 U. S. 409 (1985). However, when the prosecution invokes the co-conspirator exemption to the hearsay rule, as it does in this case, it is urging the truth of the matters asserted in the extrajudicial statements. The question here must be whether we have so much confidence in the factual accuracy of statements made by conspirators in furtherance of their conspiracy that we deem the testing of these statements by cross-examination unnecessary to guarantee the reliability of a trial‘s result.
The majority is quite right to suggest that “[c]onspirators are likely to speak differently when talking to each other in furtherance of their illegal aims than when testifying on the witness stand.” Ante, at 395. However, the differences between an accomplice‘s conspiratorial utterances and his testimony in court are not merely those of diction and demeanor. That a statement was truly made “in furtherance” of a conspiracy cannot possibly be a guarantee, or even an indicium, of its reliability. See Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv. L. Rev. 1378, 1384–1391 (1972); Note,
“Conspirators’ declarations are good to prove that some conspiracy exists but less trustworthy to show its aims and membership. The conspirator‘s interest is likely to lie in misleading the listener into believing the conspiracy stronger with more members (and different
members) and other aims than in fact it has. It is no victory for common sense to make a belief that criminals are notorious for their veracity the basis for law.” Levie, Hearsay and Conspiracy, 52 Mich. L. Rev. 1159, 1165–1166 (1954).
The unreliability of co-conspirator declarations as trial evidence is not merely a product of the duplicity with which criminals often conduct their business. It also stems from the ambiguities that so often appear in all casual conversations, not just those of outlaws. See, e. g., Dutton v. Evans, supra, at 104 (MARSHALL, J., dissenting). And the difficulties one has in making sense of slang and dialect can be compounded where conspirators use private codes, as indeed they did in this case. Because of these problems, trained case agents are often hard pressed to piece together the facts of a criminal conspiracy from the confused tangle of conversations they have intercepted. The appearance of a co-conspirator declarant in court will allow the elimination of ambiguity that neither side has a right to profit from.
C
Consideration of the reasons why co-conspirator declarations have been exempted from the rule against hearsay only confirms doubts as to the reliability of the truth asserted in those statements. In contrast to other types of statements excepted from the rule, the co-conspirator declarations have not been admitted because of a belief in their special reliability. See Davenport, supra, at 1384–1385; Levie, supra, at 1161–1167. Rather, the root of the exemption lies in substantive law. Under the agency theory that supports conspiracy law, “once the conspiracy or combination is established, the act of one conspirator, in the prosecution of the enterprise, is considered the act of all, and is evidence against all.” United States v. Gooding, 12 Wheat. 460, 469 (1827). Every statement of co-conspirators in furtherance of
This agency theory, which even the Advisory Committee on the proposed Federal Rules of Evidence labeled “at best a fiction,” Advisory Committee Notes on
II
Without even attempting to argue that co-conspirator declarations have an inherent reliability that might justify their admission at trial when the declarant is not present in court for cross-examination, the majority instead supports its holding by arguing that “it is extremely unlikely that in-court testimony will recapture the evidentiary significance of statements made when the conspiracy was operating in full force.” Ante, at 395. Indeed, the Court asserts, “co-conspirator statements derive much of their value from the fact that they are made in a context very different from trial, and therefore are usually irreplaceable as substantive evidence.” Ante, at 395–396.
I truly cannot understand the majority‘s fear that a rule requiring the prosecution to do its best to produce a co-conspirator declarant in court would somehow deprive triers of fact of valuable evidence. Under this rule, if the prosecution could not in all good faith produce the declarant, the extrajudicial statements could come in, so long as they could be shown to have “adequate ‘indicia of reliability,‘” Roberts, 448 U. S., at 66. The majority‘s fear must therefore stem from a notion that if the prosecution is able to produce the declarant in court, his presence will somehow prevent the jury from hearing the truth. This conclusion overlooks the critical importance of cross-examination in the truth-seeking process.
Whether or not a co-conspirator produced in court affirms, denies, or qualifies the truth of his out-of-court statement, his presence will contribute to the accuracy of the factfinding enterprise, the accuracy that is the primary concern of the Confrontation Clause. Whatever truth is contained in his extrajudicial declarations cannot be lost. It can only be supplemented by additional information of no less use to the triers of fact.
III
Recognizing that there may well be cases in which the cross-examination of a co-conspirator declarant is indispensable to a defendant‘s case, the Court reminds us that a defendant can always exercise his rights under the Compulsory Process Clause and call the declarant as his own witness. As long as this option remains open to a defendant, the Court reasons, “it is difficult to see what, if anything, is gained by a rule that requires the prosecution to make that declarant ‘available.‘” Ante, at 398. However, even assuming, as the Court seems to do, that the “good faith standard governing
The short answer to the majority‘s argument is that the Confrontation Clause gives a defendant a right to be confronted with the witnesses against him, not merely an opportunity to seek out witnesses on his own. As one court once noted of a situation similar to that presented in this case:
“That [a co-conspirator declarant] was available to be called as a witness does not mitigate the prosecution‘s misconduct here. The State sought to shift to the defendant the risk of calling [the declarant] to the stand. To accept the State‘s argument that the availability of [the declarant] is the equivalent of putting him on the stand and subjecting him to cross-examination would severely alter the presumptions of innocence and the burdens of proof which protect the accused.” Hoover v. Beto, 439 F. 2d 913, 924 (CA5 1971) (Wisdom, J.), rev‘d on rehearing en banc, 467 F. 2d 516 (CA5) (over dissent of seven judges), cert. denied, 409 U. S. 1086 (1972).
See also Dutton v. Evans, 400 U. S., at 104 (MARSHALL, J., dissenting).
The disadvantages that the majority would impose upon a defendant are not merely theoretical. The Court notes the “significant practical burden” placed on the prosecution by a requirement that the Government identify co-conspirator declarants with specificity. Ante, at 399. As an illustration of the difficulties that the prosecution would be forced to face, the majority refers to United States v. Ordonez, 737 F. 2d 793 (CA9 1984), where the court found a Confrontation Clause violation in the Government‘s failure to identify the
Even when a defendant is in as good a position as the prosecution to subpoena available declarants, a rule requiring him to call those declarants as his own witnesses may deny the defendant certain tactical advantages vouchsafed him by the Confrontation Clause. Under the regime established today, the only cross-examination that will attend the prosecution‘s introduction of co-conspirator declarations will be of whoever heard or recorded those statements and will focus merely on whether or not the statements were actually made. Any inquiry into the reliability of the statements must await the defendant‘s case. But if the defendant chooses to call the declarant as a defense witness, defendant risks bolstering in the jury‘s eyes the very conspiracy allegations he wishes to rebut. That the witness is viewed as hostile by the defendant, and has possibly been certified as such by the trial judge, does not necessarily mean that his relationship to the defendant will be so perceived by the jury, unless defense counsel
Moreover, even the harshest grilling of a declarant by the defense can occur only after the prosecution has rested its case. In a complex conspiracy trial, the time elapsing between the introduction of the hearsay and the cross-examination of the declarant may be quite substantial. During this time, the declarations will be unrebutted in jurors’ minds. And their effect may actually be enhanced should either the defense or prosecution repeat the statements in the course of examining the declarant. In short, “[o]nly a lawyer without trial experience would suggest that the limited right to impeach one‘s own witness is the equivalent of that right to immediate cross-examination which has always been regarded as the greatest safeguard of American trial procedure.” New York Life Ins. Co. v. Taylor, 79 U. S. App. D. C. 66, 74, 147 F. 2d 297, 305 (1945); see United States v. Oates, 560 F. 2d 45, 82, n. 39 (CA2 1977).
In federal prosecutions, there is an additional drawback. When a defendant calls a declarant as his own witness, he has no statutory right to obtain any prior statements of that declarant in the Government‘s possession—a right that attaches only “[a]fter a witness called by the United States has testified on direct examination,”
In view of all the disadvantages that attend a defendant‘s decision to call a co-conspirator declarant as a witness, the majority‘s reliance on the defendant‘s right to compulsory process to justify a decision to deprive him of a critical aspect of his Confrontation Clause right cannot be supported. The two are simply not equivalent. Moreover, the majority‘s belief that an unavailability requirement would contribute nothing but a cast of unwanted supernumeraries has no basis in the realities of criminal prosecutions. There might be instances in which an available declarant is of so little value to either side that calling him as a witness would truly be an unnecessary exercise. See, e. g., Anderson v. United States,
IV
At bottom, today‘s decision rests upon the Court‘s judgment that a defendant‘s constitutional interest in subjecting the extrajudicial declarations of co-conspirators to the cross-examination that has traditionally been the primary guarantee of reliability in trials must be subordinated to considerations of prosecutorial efficiency. I do not believe the concerns of the Confrontation Clause should be so easily disregarded. The plight of Sir Walter Raleigh, condemned on the deposition of an alleged accomplice who had since recanted, may have loomed large in the eyes of those who drafted that constitutional guarantee. See F. Heller, The Sixth Amendment 104 (1951); Stephen, The Trial of Sir Walter Raleigh, in 2 Transactions of the Royal Historical Society 172 (4th series 1919). But the Framers, had they the prescience, would surely have been as apprehensive of the spectacle of a defendant‘s conviction upon the testimony of a handful of surveillance technicians and a very large box of tapes recording the boasts, faulty recollections, and coded or ambiguous utterances of outlaws. The Court‘s decision helps clear the way for this spectacle to become a common occurrence. I dissent.